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August 6, 2004

Waiver and the Fine Print

Post from Ron:
Chief Judge Sven Erik Holmes of the Northern District of Oklahoma filed an order today (download available below) in United States v. O'Daniel, holding that Blakely applies to the federal guidelines and sentencing the defendant under modified procedures.

The distinctive feature of this case deals with waiver: the defendant waived a jury trial before Blakely in a plea agreement rich in factual detail. When the judge proposed vacating the guilty plea in light of Blakely, the defendant refused to return to status quo ante and renegotiate. Instead, he insisted on sentencing under the plea agreement, but with the upward adjustments to the offense level no longer available.

The judge went forward with sentencing, taking at face value the defendant's plea agreement statement (remember, this was drafted pre-Blakely) that allowed the judge to enhance the sentence based on judicial factfinding. By the same token, the judge refused to accept the Government's contention that the standard of proof should remain preponderance of the evidence, and instead found the relevant facts beyond a reasonable doubt.

It's a tricky question, and likely to occur. Which provisions of existing plea agreements will be enforced (especially when defendants refuse to start over) and which will the judge ignore?

The opinion also addresses the details of waiver in future cases, and notes that the court will insist that any waiver of trial must also include a waiver of jury factfinding for sentence enhancements -- no partial waivers allowed. And finally, the opinion notes that in some cases, judges may need to order bifurcated federal trials, where the sentence enhancements would prove too prejudicial in the guilt-innocence trial.